Tim Gresback’s Article on Cap on Non-Economic Damages

On May 6, 2010, the Idaho Statesman published an article by Tim Gresback, President of the Idaho Trial Lawyers Association, regarding the injustice of the law in Idaho that “caps” non-economic or general damages in personal injury cases.  In the article Mr. Gresback contrasts the power and, in fact, obligation, jurors have to determine sentencing in capital cases, and the inability of jurors in Idaho state courts, to award damages to injury victims due to the “cap” placed on cases for non-economic or general damages by Idaho state law.  I happen to agree with Mr. Gresback 100% in everything he says in his article.  The “cap” is, indeed, a law that flies in the face of everything a right to a jury trial entails.

What Mr. Gresback’s Article Did Not Address

The burning question I have in regard to “caps” on non-economic or general damages is this:  Who is behind this legislation and why?  I do not pretend to know the answer to this question, but this is what I believe.  One of my favorite classes in law school was one that was entitled Law and Economic Analysis.  This class looked at a number of different situations and determined the economic reasons for why cases turn out the way they do.  A good example is the Ford Motor Company cases involving the infamous Ford Pinto with the exploding gas tank.  In a nutshell, Ford allegedly knew about the risks the design of the Pinto gas tank posed, but calculated that the cost of a safer design outweighed any potential damages they might owe to persons potentially injured by the tank as designed.  A number of these vehicles virtually exploded when hit hard from behind due to the defective design of the tank. 

So What Is Really Up With Capping General Damages?

My thought is this:  Who really pays for the damages people sustain due to accidents?  In most cases, insurance companies do.  Where do the companies get their money to pay the damages?  From the people they insure.  What happens when the amount of claims paid out exceeds the amount the insurance companies take in?  There is no more insurance company.  This is a fairly gross over-simplification of what actually happens.  My guess is that the vast number of insurance companies are making money.  But the point is this, the “cap” is law in Idaho to protect someone.  Who is it designed to protect?  Supposedly, without the “cap”, insurance would be too expensive to buy or no insurance company would write coverage in Idaho.  Although that sounds plausible, I somehow have the feeling (and it is just a feeling) that that probably just is not the case.

Law Makers and Their Friends

Who came up with the idea that this law was needed?  Who voted to enact it?  Who brought it to the attention of the public?  My best guess, and it is just a guess, is that concerned insurance companies lobbied for this law.  It can be fixed when enough people become aware enough and unhappy enough to change it.  Mr. Gresback is on the right track.  The “caps” must go.  If the right of trial by jury is, indeed, inviolate, then are the “caps” even constitutional?

Bob Jacobson is a personal injury attorney in Boise, Idaho